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Shapiro, associate – Energy, Environment & Public Utilities Practice Group @ Cozen O'Connor, publisher – Green Building Law Blog, 2011

(Shari, “Code Green: Is 'Greening' the Building Code the Best Approach to Create a Sustainable Built Environment?” Planning & Environmental Law 63:6, p. 3-12)

The explosion of state and local green building regulations has been extraordinary and has led to interesting regulatory experimentation. Many state and local governments begin by mandating green building practices for public buildings. Some local governments have expanded that mandate to require green building practices for both public and private development, often for new construction over a certain square footage. Others have sought to encourage green building practices through financial incentives. Still others have used non-financial incentives like expedited permitting or increased density to encourage the development of green buildings.

Mandatory green building requirements work very much like traditional "command and control" environmental regulations, the Clean Water Act and the Clean Air Act being preeminent examples. Direct regulation may mandate specific green building practices or the achievement of a green building standard such as the USGBCs Leadership in Energy and Environmental Design (LEED) standard.3 Green building codes such as CALGreen, discussed in detail below, fall into this regulatory category.

Financial incentives have taken the form of direct grants from government entities,4 tax incentives, and rebates.5 Other forms of financial incentives for green buildings are rebates of the typical government-related costs of building, such as application fees.6

Local governments are also experimenting with nonfinancial incentives for green building practices. These incentives are often attractive to municipalities because they do not deplete public finances directly and are therefore easier to get passed in difficult financial times or with teluctant constituencies.7 Examples of nonfinancial incentives include increased floor-to-area ratios for green buildings8 and expedited permitting processes.

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